UNITED AIRLINES TO PAY $850K FOR DISABILITY DISCRIMINATION

The EEOC has announced that United Airlines will pay $850,000 to settle a lawsuit alleging the airline’s overtime policy violated the Americans With Disabilities Act. The lawsuit alleged that United’s policy of denying the opportunity to work overtime to anyone placed on light or limited duty had greater repercussions for employees with disabilities, since these workers were more likely to be assigned to light duty.

EEOC ISSUES PROPOSED RULE TO IMPLEMENT THE GENETIC INFORMATION NON-DISCRIMINATION ACT

The EEOC has announced that it published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to implement the Genetic Information Nondiscrimination Act (GINA). The proposed rule would implement GINA’s strict restrictions on employers acquiring individual or family genetic information from applicants and employees, requiring genetic tests, or disclosing such private medical data. Public comments must be submitted to the EEOC by May 1, 2009.

BALTIMORE ATHLETIC CLUB TO PAY $161K TO SETTLE EEOC HARASSMENT LAWSUIT

The EEOC has announced that the Big Vanilla Athletic Club in Baltimore will pay $161,000 to settle a sexual harassment lawsuit filed by the EEOC. The lawsuit alleged that the club sexually harassed several female employees at the company’s Pasadena and Arnold, Maryland locations. The harassment consisted of repeated and unwanted sexually offensive remarks and sexual advances.

DISABLED PERSON’S APPLICATION FOR SOCIAL SECURITY BENEFITS NO BAR TO EEOC SUIT

The EEOC has announced that a federal court ruled that its lawsuit on behalf of a disabled sales manager employee could not be blocked. The ruling stems from a lawsuit brought by the EEOC against Autozone, one of the nation’s largest retailers of auto parts and accessories. The EEOC alleged the company violated the Americans With Disabilities Act (ADA) by refusing to reasonably accommodate a manager’s back and neck impairments. The company was unsuccessful in amending its answer to assert the EEOC was “judicially stopped” from claiming that the employee was capable of performing essential functions of the job with or without reasonable accommodation based on the employee’s statements to the Social Security Administration.

UNION PACIFIC TO PAY $75K FOR SEX DISCRIMINATION

The EEOC has announced that Union Pacific Railroad will pay $75,000 to settle a lawsuit brought by EEOC alleging the company refused to hire a female applicant to a system material foreman position even though she had more seniority than the other applicants (EEOC v. Union Pacific Railroad Co., Civil Case No. 07-1707, filed in U.S. District Court for the Southern District of California). The woman had worked on the rails alongside men, and she had already been an assistant foreman in the division.

MARYLAND HORSE FARM TO PAY $180K TO SETTLE EEOC HARASSMENT AND RETALIATION LAWSUIT

The EEOC has announced that Fitzhaugh Farm in Maryland will pay $180,000 to settle a sexual harassment and retaliation lawsuit in which it had alleged the Farm sexually harassed a female farmhand. The lawsuit also claimed the Farm terminated the woman’s co-workers after she complained about the sexual harassment and identified them as witnesses who could support her claims. All three victims received housing as employees of the farm, and they lost their homes as result of their terminations.

NJ LIQUOR STORE TO PAY $60K TO SETTLE RACE BIAS LAWSUIT

The EEOC has announced that Shopper’s Vineyard, a wine and liquor store in Clifton, New Jersey will pay $60,000 to settle a race discrimination lawsuit brought by the EEOC. The EEOC alleged the store laid off the only African American front-line manager because of his race, and not because of economic reasons as he was told. The store retained white managers with less tenure and experience and hired many new employees, including four new white managers within the year after the plaintiff was laid off.

TRUCKING COMPANY AND EEOC REACH AGREEMENT ON DIVERSITY EFFORTS IN TRUCKING INDUSTRY

The EEOC has announced that YRC Inc., the largest over-the-road trucking company in the U.S., and the EEOC announced an agreement providing for an expanded recruitment program that is expected to increase the diversity of YRC’s truck driving and dock employees’ workforce. The no-fault agreement ended EEOC’s investigation into YRC’s hiring practices with respect to women, African Americans, and Hispanics into truck driving and dock worker positions. The investigation was concluded without a finding that YRC violated Title VII.

VIRGINIA AUTO PARTS STORE SETTLES DISABILITY BIAS SUIT FOR $50K

The EEOC has announced that Advance Stores Company, Inc., d/b/a as Advance Auto Parts, will pay $50,000 to settle a disability discrimination lawsuit filed by EEOC in which the agency alleged the company refused to hire an applicant because of his cerebral palsy. The applicant applied for a part-time sales job at the company’s retail store after successfully completing an internship as a salesperson at another store location.

DOL MAKES DATABASE OF JOB CANDIDATES WITH DISABILITIES AVAILABLE TO EMPLOYERS

The U.S. Department of Labor has announced that it will make available to employers nationwide a free database of 1,921 job candidates with disabilities seeking employment in a wide variety of fields. The Workforce Recruitment Program for College Students with Disabilities is co-sponsored by the DOL Office of Disability Employment Policy and the U.S. Department of Defense, which compiled the database by sending recruiters to college campuses across the country to interview eligible undergraduate and post-graduate students, as well as recent graduates.

FORMER DOL SECRETARY ELAINE CHAO RETURNS TO THE HERITAGE FOUNDATION

Former DOL Secretary Elaine Chao has returned to The Heritage Foundation as a Distinguished Fellow, according to a foundation press release. She will concentrate on international policy issues as well as labor policy.

DOL RELEASES NEWS RELEASE ON COBRA

DOL Secretary Hilda Solis has issued a news release on a COBRA subsidy under the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA provides a 65 percent tax subsidy for the cost of health benefits for the unemployed for up to nine months, subject to the program’s eligibility requirements. The information is intended to help the public understand how the program works and how they can qualify for the premium subsidy for continuation of health coverage under private, state and federal programs.

THE CENTER FOR CORPORATE EQUALITY CALLS FOR TRANSPARENCY IN OFCCP REPORTING

WASHINGTON D.C. – The Center for Corporate Equality (CCE) today released a comprehensive report analyzing enforcement results compiled by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) on their equal employment and affirmative action requirements.

The report, A REVIEW OF OFCCP ENFORCEMENT STATISTICS: A CALL FOR TRANSPARENCY IN OFCCP REPORTING, offers a detailed analysis of the agency’s fiscal year 2007 enforcement results that resulted in $51,680,950 in back pay and annualized salary and benefits for 22,251 American workers who had been subjected to unlawful employment discrimination.

Detailed findings outlined in CCE’s report include the types of systemic discrimination OFCCP resolved in FY 2007, the kinds of industries involved and the levels of employees and applicants impacted; how the financial remedies in settlement agreements were calculated; how long it took OFCCP to open compliance evaluations and resolve them through settlement; and any differences in enforcement strategy between the OFCCP’s six regional offices that audit federal contractor establishments.

“This comprehensive report provides a rare glimpse inside OFCCP’s enforcement operations,” said Patricia Schaeffer, executive director for the nonprofit employer association based in Washington DC. “It provides much needed transparency into how OFCCP enforces its equal employment and affirmative action mission,” she said. “We’re hopeful OFCCP will provide comparable in-depth data in their future enforcement reports,” she said.

Report co-author David Cohen, senior vice president, added “Our goal in analyzing this data was not to judge how OFCCP should conduct its enforcement operations, and this report contains no judgments. We simply wanted to analyze the conciliation agreements and consent decrees that made up OFCCP’s fiscal year 2007 enforcement results and report on what we found,” he said. “This report provides useful baseline data so enforcement trends can be tracked in future years.”

Eric Dunleavy Ph.D., senior consultant, said one of the key findings is “that systemic discrimination is an important OFCCP enforcement initiative.” “This data confirms what OFCCP has been telling us all along – that systemic discrimination is an important enforcement initiative, and it’s clear they have expended considerable resources into that area.”

Paul Wells, Employee Compensation at The Boeing Company, and chair of CCE’s Board of Directors, added, “I think the data in this comprehensive report will be extremely useful to federal contractors. It will help them identify where they need to make improvements and adjustments to further improve their EEO and affirmative action programs.”

CCE will present their findings at the 27th Annual Industry Liaison Group National Conference scheduled July 28, 2009-July 31, 2009 in Atlanta.

Specific findings include:

1. Nearly all of the settlements (95 percent) involved allegations of systemic discrimination in hiring. Only five percent of the settlements involved allegations of systemic compensation discrimination. None of the OFCCP settlements in fiscal year 2007 involved allegations related to systemic discrimination in promotions or terminations.

2. No “Glass Ceiling” compliance evaluation, which is an audit of a corporate headquarters that focuses on identifying barriers to women and minorities advancing to senior executive positions, resulted in financial remedies.

3. More than half of the settlements involved alleged systemic discrimination against applicants for lower level jobs in food service and manufacturing industries.

4. Certain lower level jobs, such as laborers and operative positions, were found in about three-quarters of settlements.

5. Only settlements involving allegations of systemic discrimination resulted in financial remedies for workers.

6. The average length of time between start of the compliance evaluation and the conciliation or consent decree was 2.5 years.

7. Women and minorities benefitted in fairly equal numbers in these settlements.

8. There were no settlements related to compliance evaluations of a Functional Affirmative Action Plan, which is a plan based on functional or business units rather than a business location.

9. Enforcement strategies, such as the length of time to conciliation, how data were analyzed, how financial remedies were calculated, etc., varied between the six OFCCP Regional Offices that conducted the compliance evaluations.

The full report is available at http://www.cceq.org/.

WMILG Meeting - February 2009

by Eric Dunleavy, Sul-Kee Kim, David Morgan & Keli Wilson, DCI Consulting Group

DCI staff attended the Washington Metro Industry Liaison Group (WMILG) meeting at U.S. Foodservice’s Manassas facility on February 19, 2009. The meeting was organized into three separate presentations, including (1) expected changes at OFCCP under the Obama administration, (2) adverse impact analyses of termination decisions, and (3) recognition of G-Five award winners from the Washington D.C. metro area. This blog describes some of the highlights of the meeting.

The Obama Presidency: Changes Ahead for the OFCCP
Bill Doyle, Esq. at Morgan Lewis, discussed some expected changes at OFCCP under the new administration. Doyle addressed the potential of an aggressive agency focus on compensation discrimination, glass ceiling issues, termination discrimination, the revision of the Internet Applicant regulations and a concentration on contractors receiving Federal bailout funds.

A majority of the presentation was devoted to discussions on the recent passage of the Lilly Ledbetter Fair Pay Act of 2009 and the potential implications of the current version of the Paycheck Fairness Act. The Ledbetter Fair Pay Act allows for timely claims to be brought, each time a compensation decision or practice resulting from a discriminatory compensation decision or other practice, is applied (“other practices” do not include hiring, promotion or termination). Since the Act covers “compensation decision(s) or other practice(s),” plaintiffs may challenge any employment decision that affects pay, such as performance appraisal ratings, pay grade, and department placements.

The Paycheck Fairness Act (PFA), if passed in its current form, will strengthen the Equal Pay Act (EPA) and make both compensatory and punitive damages available for EPA violations. The PFA would also require the EEOC to collect pay data by employees’ race and sex. Specific OFCCP provisions are also included in the PFA. Evidence of discrimination through pay grade analysis would once again be permitted; additionally, the EO Survey would be reinstated. Doyle explained, however, that even though pay grade methodology could be used as evidence and could impose litigation costs on the employer, OFCCP may not be able to win an actual court case using the methodology and would likely seek pre-litigation settlements.

Doyle explained there are important steps contractors should take to avoid or prepare for violations of the Ledbetter Fair Pay Act, PFA or forthcoming OFCCP initiatives. Recommendations included, but were not limited to: reviewing pay systems, reviewing performance appraisal systems, reviewing record-keeping related to compensation (e.g., starting pay decisions, merit pay decisions, market adjustments and pay scales), and conducting privileged internal equity studies. Even if the provisions of the PFA do become law, Doyle suggests contractors continue to include multiple regression analyses when conducting privileged internal equity studies, in addition to the types of pay grade analyses that OFCCP would be using. These suggestions would allow contractors to make proactive adjustments to avoid violations, and ensure that appropriate defense models have been developed if necessary.

Economic and Statistical Analysis for Layoffs
The presentation by Dr. Rick Holt at ERS Group was very useful and timely now that more and more organizations are engaging in mass layoffs. Holt stated a best practice would be to conduct a reduction-in-force analysis under attorney-client privilege prior to receiving a lawsuit of potential discrimination. Holt also mentioned some key factors to keep in mind when conducting a termination analysis, such as who’s affected by the layoff(s), the number of reductions (e.g., one round or several rounds of layoffs), and what considerations are made when determining potential layoffs (e.g., employee rank).

One interesting thought to ponder from this meeting is how the economy may drive OFCCP focus in future compliance evaluations. Will OFCCP be more focused on termination analyses now that organizations are engaging in reductions in force due to economic pressures? Only time will tell, but some questions to be thinking about include:

• Does your organization conduct a reduction-in-force analysis to determine whether there’s adverse impact against a protected group in a mass layoff?
• If so, is the analysis covered under attorney-client privilege?
• Are you analyzing similar jobs (e.g., specific job title within a job group)?
• What are you using as your comparison pool (e.g., employee snapshot)?

A best practice discussed in the WMILG meeting was to use a snapshot of employment at a point in time directly prior to the reduction-in-force as a comparison pool of those employees who potentially could be terminated.

G-FIVE Initiative
The meeting concluded with a presentation of G-FIVE award recipients in the WMILG area. Michele Hodge, Acting Regional Director of OFCCP’s Mid-Atlantic region, recognized (1) Computing Technologies INC and (2) Engineering Systems Solutions for their best practices in the employment and advancement of veterans. Representatives from both organizations discussed some of their best practices, which included:
Becoming involved in veteran transition assistance programs like the Wounded Warrior Project and Hire a Hero. For example, volunteer to help veterans write resumes, with emphasis on ‘translating’ military education and experience into a format that clearly links to public and private sector work;

• Supporting the Marine for Life Program with donations or volunteering; this is an example of a noble cause that also connects companies to qualified veterans;
• Putting job advertisements in local military base newspapers;
• Publicizing military contributions by employees. For example, be sure to announce who is on active duty and update your company website with military and veteran accomplishments;
• Tailoring your compensation and benefits package to be flexible toward veteran needs.

THE CENTER FOR CORPORATE EQUALITY CALLS FOR MORE TRANSPARENCY

The Center for Corporate Equality (CCE), a nonprofit employer association based in Washington DC, was quoted in a special article published in BNA Daily Labor Report® (subscription required) featuring the outlook for the OFCCP in 2009. A summary of these remarks follows:

Patricia Schaeffer, Executive Director for CCE, said the Obama administration should focus on boosting OFCCP's technical expertise as well as its transparency in evaluating contractors' compliance. She indicated the agency needs to apply 21st-century thinking and approaches to implementing their mission by developing the necessary internal systems, processes, and procedures to support their enforcement efforts. Schaeffer said that unfortunately, some of OFCCP's most important initiatives have suffered because they do not have a coordinated and technically sophisticated infrastructure to implement them effectively. CCE also hopes that OFCCP's enforcement efforts and results will become much more transparent in the new administration. Schaeffer said that OFCCP currently provides only minimal data to explain the agency's enforcement results. CCE has conducted its own comprehensive analysis of OFCCP's fiscal 2007 enforcement data, and now plans to release the report in early March. CCE hopes that in the future, OFCCP will conduct and share a similar analysis of its fiscal 2009 enforcement results.

STUART ISHIMARU NAMED ACTING EEOC CHAIRMAN; CHRISTINE GRIFFIN NAMED ACTING VICE CHAIR

The Equal Employment Opportunity Commission (EEOC) has announced that President Obama appointed Stuart Ishimaru as Acting Chairman and Christine Griffin as Acting Vice Chair of the commission. Ishimaru succeeds Naomi C. Earp, whose term as Commissioner expires on July 1, 2010. The Senate had previously confirmed Ishimaru for a second term that will expire on July 1, 2012. Christine Griffin became an EEOC Commissioner on January 3, 2006 to serve the reminder of a five-year term expiring July 1, 2009.

TRUCKING COMPANY TO PAY $2.43 MILLION TO SETTLE HIRING LAWSUIT

The Equal Employment Opportunity Commission (EEOC) has announced that Pitt Ohio, an interstate trucking firm, had agreed to pay $2.43 million to a class of women to settle a class action lawsuit. The EEOC alleged the company denied a class of qualified female applicants employment as truck drivers or dockworkers since 1997, while men were placed in these positions during the same period.

EEOC SETTLES HARASSMENT LAWSUIT FOR $75K

The Equal Employment Opportunity Commission (EEOC) has announced that Georgia-Pacific Gypsum LLC will pay more than $75,000 to resolve a sexual harassment and retaliation lawsuit that alleged the company permitted a co-worker at an Iowa drywall manufacturing plant to sexually harass a female employee and then not take remedial action.

RETAILER TO PAY $50K TO SETTLE EEOC RACE BIAS LAWSUIT

The Equal Employment Opportunity Commission (EEOC) has announced that J.C. Penney Corporation Inc. will pay $50,000 to settle a race discrimination lawsuit that alleged the company discriminated against an African American employee, who worked as a greeter welcoming customers into its Staten Island store. The lawsuit alleged the employee’s supervisor referred to her several times using racially offensive names and subsequently fired her for racial reasons.

MOVIE PRODUCTION COMPANIES SETTLE PREGNANCY DISCRIMINATION LAWSUIT WITH EEOC

The Equal Employment Opportunity Commission (EEOC) has announced that two movie production companies will pay $75,000 to settle a pregnancy discrimination lawsuit that alleged the companies refused to hire a pregnant job applicant for a position after they learned that she was pregnant. An email from the hiring supervisor, according to the EEOC, showed that the defendants believed the applicant’s pregnancy would prevent her from being able to handle the stress and long hours associated with the job though her own doctor had indicated that the job was appropriate.

CAR DEALERSHIP TO PAY $244K FOR SEX HARASSMENT AND RETALIATION

The Equal Employment Opportunity Commission (EEOC) has announced that Murphy Ford Inc., a car dealership located in Chester, Pennsylvania, will pay $244,000 to settle a sexual harassment and retaliation lawsuit. The lawsuit alleged the dealership’s service manager sexually harassed three female employees who worked in the service department, and that the company did nothing to stop the harassment despite complaints. The EEOC also alleged the dealership retaliated against one of the women who complained by suddenly firing her.

CAR DEALERSHIP IN MAUI SUED FOR DISABILITY DISCRIMINATION IN HIRING CASE

The Equal Employment Opportunity Commission (EEOC) has announced that Valley Isle Motors, Ltd, a car dealership in Maui, discriminated against an employee by failing to hire him for a salesperson position because of a perceived mental disability. The EEOC alleged the company denied the employee a salesperson position because of prescription medications he was taking, despite the employee having submitted normal medical test results to the company and being medically authorized to work without any restrictions.

SANITATION COMPANY TO PAY $475K TO SETTLE HIRING BIAS LAWSUIT

The Equal Employment Opportunity Commission (EEOC) has announced that Robertson Sanitation, a Phoenix-based trash hauling, recycling and disposal company that operates in Georgia, will pay $475,000 to settle a sex discrimination lawsuit. The EEOC alleged in its lawsuit that a female applicant applied for a truck driver position with Robertson at a facility in Georgia, and was never interviewed nor made an offer despite being more qualified than several male applicants who were hired. EEOC alleged there was a class of similarly qualified women who were also rejected despite their qualifications, and that the discriminatory hiring practices were evident at a second company facility in Georgia.

EEOC GENERAL COUNSEL RETURNS TO PRIVATE PRACTICE

The Equal Employment Opportunity Commission (EEOC) has announced that Ronald S. Cooper, General Counsel of the EEOC, will return to private practice. He will rejoin the law firm of Steptoe & Johnson LLP in its Washington DC office. Deputy General Counsel James L. Lee will oversee operations of the Office of General Counsel.

BUREAU OF LABOR STATISTICS TO REPORT ON EMPLOYMENT STATUS OF PEOPLE WITH DISABILITIES

The Bureau of Labor Statistics announced that it will begin releasing monthly data on the employment and unemployment of persons with disabilities. The report will be based on information collected in the Current Population Survey, which provides comprehensive information on the employment status of the civilian population. The BLS reported that in January 2009, the unemployment rate of persons with a disability was 13.2 percent, compared with 8.3 percent for persons with no disability, not seasonally adjusted. The employment-population ratio for persons with a disability was 20.0 percent, compared with 65.0 percent for persons with no disability.

SUPREME COURT RULING TO PROTECT WORKER FIRED AFTER PARTICIPATING IN INTERNAL SEXUAL HARASSMENT INVESTIGATION

The U.S. Supreme Court ruled unanimously in Crawford v. Metro Government of Nashville that federal law protects a worker from being fired after telling investigators in an internal company investigation about sexual harassment on the job. The Court ruled the anti-retaliation provision of Title VII extends to a worker who speaks out about discrimination not on her own, but in answering questions during an employer investigation. The ruling was written by Justice David H. Souter and is available here.

EEOC POSTS NOTICE ON THE LEDBETTER ACT

The Equal Employment Opportunity Commission (EEOC) posted a notice regarding the application of the new Lilly Ledbetter Fair Pay Act of 2009. The EEOC’s notice advises potential charging parties that if they are aware of unexplained differences between their own compensation and coworkers’ compensation and believe that the difference is because of their race, color, religion, sex, national origin, age, or disability, they should call the EEOC for more information on filing a charge.

NEW REPORT ON STATE LABOR LEGISLATION ENACTED IN 2008

The Bureau of Labor Statistics published a comprehensive article on state labor legislation enacted in 2008 in the January 2009 issue of the Monthly Labor Review. The article is here.

HOUSE BILL RE-INTRODUCED TO PERMIT COMP TIME

Rep. Cathy McMorris Rodgers (R-WA) has re-introduced a bill (“Family-Friendly Workplace Act,” H.R. 933) that would give private sector employees the option of taking paid time off as compensation for overtime hours worked, or “comp time.” The bill would amend the Fair Labor Standards Act to allow employers to offer employees comp time off at a rate of one and one-half hours for each hour of overtime worked. Text of the proposed bill is here.

BILL INTRODUCED IN HOUSE TO ENHANCE FMLA

Rep. Carolyn B. Maloney has introduced the proposed Family and Medical Leave Enhancement Act (H.R. 824) that would allow employees to take, as additional leave, parental involvement leave to participate in or attend their children’s and grandchildren’s educational and extracurricular activities, and to clarify that leave may be taken for routine family medical needs and to assist elderly relatives, and for other purposes. The text of the proposed bill is here.